Legal Guardrails Against Rubber-Stamping Search Warrants in the Elections Context

The recent spate of criminal investigations into election offices — and the images of law enforcement carting away boxes of ballots — may create the impression that there are no guardrails against political actors seizing such sensitive documents for their own ends. But the Fourth Amendment protects against criminal investigations based purely on conspiracy theories, falsehoods, and political agendas. Courts have a duty to hold the government to these constitutional requirements in all criminal investigations, including in the context of elections.

Federal judges have long operated under the assumption that the Department of Justice and other federal law enforcement agencies are honest and credible. But that presumption of regularity has been shredded under the second Trump administration, with DOJ attorneys repeatedly being accused of breaching basic professional and ethical standards, such as by making false or unsupported claims or failing to comply with court orders. Just as worrisome, the DOJ appears to have abandoned its long-established practice of avoiding certain investigatory actions too close to an election and being sensitive to matters typically handled by states, cities, and counties, such as elections.

Given these concerning shifts at the DOJ, as well as the administration’s campaign to undermine elections, courts should be wary of attempts to exploit the search warrant process for political ends ahead of the 2026 midterms. If those efforts succeed, there could be irreversible consequences for American elections, privacy, and the fundamental right to vote.

The Fourth Amendment prohibits unreasonable searches and seizures by the government. It generally requires law enforcement to obtain a warrant signed by a judge, with some limited exceptions to that rule, such as searches at the border, searches upon arrest, and cases of imminent danger. To approve a warrant request, a judge has to find “probable cause” that a crime has been committed and that evidence of the crime will be found at the specific location to be searched. Under federal law, federal law enforcement officers can summarize their evidence to a judge through either a written affidavit or oral testimony. The judge has to review the affidavit and may question the officer before signing off on the warrant request.

Probable Cause

After reviewing the evidence, the judge decides whether “the totality of circumstances” establishes probable cause, which doesn’t have a precise definition but has typically been interpreted as a “reasonable likelihood evidence of wrongdoing will be found” at the place to be searched. Speculation without corroboration is not enough to meet this standard.

Warrant affidavits must include key information, such as identifying the people suspected of committing the alleged crime and evidence that those identified intended to commit the crime. Sometimes the affidavit will not identify the suspects but will summarize the evidence of the alleged crime. When a search warrant application is missing key information or contains irregularities, a judge may decide that the totality of circumstances don’t amount to probable cause. The judge can then either decline to sign off on the warrant or, at a minimum, seek more information from the government.

Issues in Election Cases: Witnesses in election investigations might share conspiracy theories or describe suspicious actions that are just speculation without any corroborating evidence. Election deniers have repeatedly spread debunked conspiracy theories and disinformation in public statements and even in court about supposed widespread fraud in the 2020 election, despite the absence of any supporting evidence. Law enforcement might therefore seek a search warrant to essentially conduct a fishing expedition for evidence that arguably fits its theory, which is not allowed under the law. A search warrant application might also be questionable if it includes allegations concerning the 2020 election, since the five-year statute of limitations for such claims has passed.

Witness Credibility

The Fourth Amendment requires the government to rely on trustworthy, reliable evidence. Therefore, if government witnesses, particularly unidentified ones, give demonstrably false and discredited statements, judges have to weigh this factor in deciding whether to authorize a search warrant. If law enforcement officers are aware of information that undercuts their witnesses’ credibility in ways that would impact a court’s decision, they are required to disclose it. They are legally obligated to assess informant credibility, including by independently corroborating their information where possible. They also have an ethical duty to avoid providing false witness testimony and to tell the court if witness testimony isn’t trustworthy.

Issues in Election Cases: In the past, the federal government would not typically rely on discredited witnesses, such as election deniers. But as noted earlier, judges have repeatedly criticized this administration for misrepresenting facts in court. The government has been especially unreliable when it comes to allegations relating to elections, repeatedly claiming that the 2020 presidential election was stolen and spreading misinformation about alleged noncitizen voting. Even worse, it has appointed several noted election deniers to key leadership positions at the DOJ. If a warrant request is exclusively based on uncorroborated allegations made by an unreliable witness, that is a basis for a judge to reject it.

Particularity

A warrant has to identify the specific crime that law enforcement believes has been committed, as well as the places to be searched and the items to be seized. Vague claims about misconduct that don’t allege a specific crime aren’t enough to satisfy what’s known as the particularity requirement. Searches also have to be carefully tailored to their justification so officers don’t have discretion to decide what to take (if it’s physical evidence) or what to access (if it’s digital evidence).

Issues in Election Cases: State laws require election officials to follow detailed processes and multiple layers of checks over the course of several weeks to ensure the integrity of the electoral process and the accuracy of the count. These processes vary by state. Conspiracy theorists have often exploited the public’s lack of familiarity with these processes and pounced on minor errors or glitches to create the impression of criminality. But affidavits can’t rely on such obfuscation, and they have to allege an actual crime to meet standards for approval. Officers also can’t use a warrant to explore what other evidence they can find to justify their suspicions about additional potential crimes.

If a court decides that a search warrant request has met constitutional requirements, there are still important procedures it can use in election-related cases to ensure the safety and security of the documents and equipment and avoid disrupting the electoral process.

Custody of Materials

Federal and state laws give state and local election officials the responsibility to run elections and maintain the security and privacy of election materials. State laws also require election officials to take certain actions involving ballots, including counting and preserving them, as well as following chain-of-custody procedures to track the transfer of ballots between election workers and prevent interference with these sensitive materials. Federal law requires election officials to preserve certain election materials for 22 months, and it allows courts to decide the appropriate process for the government to access election materials when applicable. If a court decides the government is entitled to access election materials, it can avoid disrupting the chain of custody and other legally required procedures by retaining custody of those materials while the government reviews them, requiring federal authorities to provide a chain-of-custody plan for the seized materials, or appointing an independent monitor.

Timing

Courts should expedite hearings on challenges to election-related search warrants. Elections are time-sensitive. Counting, canvassing, and certification processes run on strict timelines mandated by federal and state law. Any disruption of election materials can create lengthy delays or confusion around the election outcome, which could leave states and districts without representation in the interim or potentially lead to public distrust in the results. Unlike in most other cases, waiting until after the legal proceedings to return election materials or equipment could cause irreparable harm, such as disenfranchisement or diminished public confidence in elections.

If the government executes a warrant and takes election equipment, ballots, or other information, election officials are likely to rush to court for an order to return the materials — perhaps even while the materials are being taken — and protect them from disclosure and tampering in the meantime. Courts can prioritize these requests and expedite the hearings, as well as require the government to access only the materials necessary for its investigation. Courts can also order measures to protect the evidence and prevent any possible sharing or misuse.

Training and Delegation to Experts

Chief judges for each federal district should assign experienced magistrate judges to handle election-related matters. In every federal district, a magistrate judge is designated to handle all new matters that arise each day. Because of the extraordinary sensitivities of issues related to elections, the chief judge for each district should assign only experienced magistrates to handle those matters. Alternatively, the judiciary should require that all magistrates receive training on election-specific issues.

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The Trump administration’s actions over the past year signal that political actors will likely continue trying to interfere with elections. The Fourth Amendment was designed as a bulwark against this kind of government overreach — as long as courts uphold its protections.